Skip to main content

Full text of "[untitled] The American Journal of International Law, (1909-04-01), pages 513-516"

See other formats


Early Journal Content on JSTOR, Free to Anyone in the World 

This article is one of nearly 500,000 scholarly works digitized and made freely available to everyone in 
the world by JSTOR. 

Known as the Early Journal Content, this set of works include research articles, news, letters, and other 
writings published in more than 200 of the oldest leading academic journals. The works date from the 
mid-seventeenth to the early twentieth centuries. 

We encourage people to read and share the Early Journal Content openly and to tell others that this 
resource exists. People may post this content online or redistribute in any way for non-commercial 

Read more about Early Journal Content at 
journal-content . 

JSTOR is a digital library of academic journals, books, and primary source objects. JSTOR helps people 
discover, use, and build upon a wide range of content through a powerful research and teaching 
platform, and preserves this content for future generations. JSTOR is part of ITHAKA, a not-for-profit 
organization that also includes Ithaka S+R and Portico. For more information about JSTOR, please 


about it, so he quietly put him in as law-adviser. * * * All proposi- 
tions are rejected. It is a most uncomfortable twist in the make-up of a 

The other trouble which obstructed the unalloyed enjoyment and suc- 
cess of the head of the Department, is indicated in Mrs. Blaine's letter 
written within two months after taking the post. " Congratulate me 
and the principal sufferer, that the embargo of the lumbago is removed 
and that your Father is actually out again." 

It is known that gradually the relations between the Executive Man- 
sion and the residence of the premier of the cabinet became quite strained ; 
and that attacks of severe illness often incapacitated him from the dis- 
charge of his duties. But here, so far as revealed in this work, the 
curtain drops upon the political life of the great Secretary. 

John W. Foster. 

Eallech's International Law. Fourth edition, thoroughly revised and in 
many parts rewritten by Sir G. Sherston Baker, Bart., assisted by 
Maurice N. Drucquer. 2 vols. London: Kegan Paul, Trench, 
Triibner and Co. 1908. 

General Halleck's original work was especially valued because of its 
fullness of treatment of the laws of war and of the experience of the 
author in that direction. For thirty years Sir Sherston Baker has borne 
the relation of an editor to this work, correcting what was in his judgment 
obsolete or mistaken, at first by notes, but in the later editions by changes 
of text. As to the character of these changes the curiosity of the reader 
is somewhat aroused by the unusual tone of the preface. Writing of the 
Conventions framed by the Second Hague Conference he says : 

Whether all or any of these conventions will ever be accepted by any powers, 
even by an inferior power, remains to be seen. The Second Conference met with 
great pomp and circumstance, but has achieved nothing. * * * No general 
or admiral worth the name would pause in difficult strategy, or at the moment 
of victory, because some effeminate article of the Second Hague Convention or 
other grandmotherly conference, forbade him to do so and so. 

And the author felicitates himself that his work is " not one of theory 
but eminently one of practice " and used by all British ships of war. 

Let us see. Of the fifteen conventions of this " grandmotherly " Second 
Hague Conference, the delegates of Great Britain signed (with reservation 
in five cases) all but one. Many of these have entered the rules of war. 
They are as binding upon their signatories as any other international 


agreement. The breach of them means bad faith; it may mean also dam- 
ages. Yet our author assures us that his dictum of the existing law 
drawn from precedent, is what a British officer will follow, rather than 
an international agreement. He is one of that class, now happily grow- 
ing small, which would make a hide-bound non-progressive science of the 
law of nations, failing to see that it grows and is actually in process of 
piecemeal codification, by the best means possible — treaty stipulation. 

It is the new matter in this fourth edition, not General Halleck's work, 
but Sir Sherston's work, which is under review. Halleck's first chapter 
is a brief history of International Law by periods. To this the present 
edition has added an eleventh section, from the Civil War of 1861 to the 
present time, noting the principal events, the important questions and the 
names of writers on the law of nations. As illustrative of the author's 
sense of proportion, no mention is here made of Morocco and the Algeciras 
conference, the Congo question since 1888, the Second Hague Conference, 
amongst important questions, while there is included, " The decision of 
the Queens Bench Division in the ' Mignonette ' case in 1884, that the 
old law of the sea permitting cannibalism in extremest necessity is 
wrong," a judgment which Sir Sherston takes pains to combat. 

The American publicists who have caught his eye in this period are 
D. D. Field, B. H. Dana, President W. A. P. Martin, Wharton, Cushman 
Davis and Hannis Taylor. Of J. B. Moore, Professor Wilson, Professor 
Snow, J. B. Scott, Professor Hershey and others he says nothing; nor 
of any Japanese writers though Takahashi has written in English and 
Ariga in French. Kleen is not given from Scandinavia, but Aubert, 
Coos and Olincrona. W. E. Hall is not mentioned amongst English pub-, 
licists, yet his authority is second to that of no other writer in English. 

Five-sixths of volume one relate to international law in time of peace. 
There are a hundred pages more than in the first edition, yet it is hard 
to see that the additions and changes have been of uniform value or the 
old text as "thoroughly revised" as the title asserts under date of 1908. 
Here are a few of the errors or omissions noted : 

I: p. 151. A commodore "who is the highest officer in the United States navy.'" 

I: p. 176. Our fishery treaty of 1818 with Great Britain is not stated to be 
perpetual in terms, which was its unusual and distinctive feature. 

I: p. 177. The Fur Seal Arbitration is referred to, but the decision of the 
court as to jurisdiction over seals at sea, and as to property right in seals at sea, 
the point at issue, is not given. One is left in the dark as to the result of the 

I: p. 190. Amongst the rivers whose navigation has been made free, the Congo 


is not mentioned. The Italian theory that allegiance is the best test of civil 
status, which has been widely followed, is not alluded to. 

I: p. 195. Reference is made to the alliance between the South African Re- 
publics and the Orange Free State which anticipated the Boer war, although the 
former " was said by Great Britain to be a semi-sovereign state under British 
suzerainty." In point of fact the treaty veto power upon which the claim to 
suzerainty was founded, expressly excluded these two states from its operation. 

I: p. 177. The decision in the 'headland' question, which declared the big 
bays like Fundy to be a part of the high seas (Mr. Bates, referee in the case of 
the Washington) does not appear in the discussion of this subject. 

I: p. 501. The Dogger Bank inquiry is stated to have been made by "this 
permanent court at The Hague," which is manifestly an error, having been made 
by a specially constituted committee of admirals. 

Certain features of the old edition are retained, e. g., the very full 
statement as to naval salutes and etiquette, and the valuable description 
of consular courts in the east and of the mixed courts in Egypt. On 
the other hand a convenient list of treaties for the abolition of the slave 
trade which was in the first edition, is now omitted. The marginal topic 
notes on each page are a good addition. There is an immense mass of 
references to authors, but they are mostly antiquated. Thus Hall is cited 
only once in volume I and not at all in volume II. 

In his treatment of the relations of states in time of war, the editor is 
even more disappointing. Our war with Spain, England's war with the 
Boers, Japan's war with Eussia, particularly, furnished many causes 
celebres which have since been the subject of plentiful discussion and of 
international legislation. The references to these in the new edition are 
few and brief and perfunctory. Moreover it is a serious reproach to a 
work dated 1908, that it incorporates none of the rules of war agreed 
to at The Hague in 1907 and early in 1908. Surely they were worth 
waiting for, had that been necessary. The printing of the text of the con- 
vention respecting the laws and usages of war on land at the end of a 
chapter (but none of the other conventions relating to war) does not 
relieve the editor of this reproach. Even the 1899 Hague Conventions 
are largely disregarded. In speaking of them (11:18) he writes: 

How far the spirit of these conventions will be maintained in time of war is 
very uncertain. * * * The ferocity of war in actual practice will not suffer 
itself to be tied by hard and fast rules. We fear that these conventions are 
more likely to be honoured in the breach than in the observance. 

The experience of the Eusso-Japanese war, if the editor had cared to 
study it might have reassured him. To assume without proof, that a 


treaty is going to be violated and therefore to think ill of its provisions, 
is hardly a scientific spirit. This neglect of something which for some 
unexplained reason is distasteful leads to errors in treatment of important 
subjects which are vital. Thus (I : p. 160) the restriction of the legalized 
levee en masse to non occupied territory, is not mentioned. The abuse 
of floating mines in the Gulf of Pe chi li is properly characterized (I : p. 
620) but the convention of 1907 to regulate the practice is not noticed. 

The Hague, 1899, prohibition of the use of an enemy's uniform is not 
noted. The editor seems (II: p. 82) to have an entire misconception of 
the 1899 Hague rule as to bombardment which prohibited it in unde- 
fended places only. This discussion of privateering stops with our Civil 
War. The discussion of contraband (II: p. 264) ancipitis usus leaves 
out the Knight Commander case, although that is referred to, later (p. 
310) with the mistaken assertion that Eussia paid damages for its sink- 
ing. The treatment of the doctrine of continuous voyages (11:339) is 
inadequate with a bare reference to the Boer War cases and no reference 
to its approval by the Institute. One of the noteworthy changes in the 
text (1 :630) is dictated by the desire to cast discredit upon the execution 
of Major Andre. A lengthy note (II: p. 18) gives the correspondence 
between von Moltke and Bluntschli as to the rules of the Oxford (1880) 
Manual, in order to illustrate the military attitude. This is interesting 
but appears to confuse the provisions of a treaty with a code drawn up 
by a mere committee of a learned society. Does the editor mean to imply 
that a German general would violate the 1899 convention in case of war ! 

It would be easy to multiply instances of inadequate treatment, of 
national prejudice, of personal bias. The truth is that the promise of 
the title page is not fulfilled. The " thorough revision " is illusory. 

Theodore S. Woolsey. 

Die staatsburgerliche Sonderstellung des deutschen Militarstandes. By 
Erich Schwenger. J. C. B. Mohr : Tubingen. 1907. pp. viii, 129. 

The author makes the assertion that his monograph is the first to 
deal, in systematic fashion, with the particular rights and obligations 
involved in the German military status. To accomplish this purpose, 
he has minutely digested about twenty imperial statutes bearing in any 
manner upon the subject and has arranged their contents, with his own 
commentary, under the proper headings. 

The introduction seeks to define the class-term "military persons" 
within the meaning of the statutes and shows that the term embraces